Introduction

Influencers endorsing brands and advertisement is the new normal. In their practice, influencers are able to build direct relationships with their key consumers and create a brand loyalty. Thus brands targeting specific consumers, their needs and wants, opt to use them. In advertising, influencers are preferred based on their trust within a niche community, retention of a loyal following and knowledge or experience about what they are advertising.[1]

On 11th March, 2019 notable influencers were endorsing Always products sold in Kenya on #feelthecomfortalways advertisement on Instagram. Influencers were tagged in the advertisement in order to promote the product and to achieve a bigger and specific target audience. On social media, particularly Twitter, consumer complaints on the quality of the Always product have been raised and recorded on #myalwaysexperience, which began in early February 2019.

In light of this on-going case, this article examines misleading representations in influencer led advertisement on social media. A misleading representation occurs when a shared practice or representation misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the ordinary consumer to take a different decision.[2]  Thus, what statements made by influencers would be termed as misleading representations on social media? How are misleading representations enforced? Materiality in enforcing consumer complaints on misleading representations made by influencers on social media?

Misleading Representations on Social Media

In advertising influencers make often statements, referred to as testimonials, from previous and/or current customers about their experience with a product or service.[3] The testimonials used, such as opinions, value judgments, and subjective assessments on a product, have to be truthful. The consumers should not be misled on any aspect of a product or service which is capable of being objectively assessed in light of generally accepted standards.[4] For instance, a person falsely presents that goods and services have qualities, uses, and benefits they do not have.[5]

Generally, if proven that the Always products in #feelthecomfortalways do not have the said benefits and qualities, and the representations caused an ordinary consumer to make a different decision, the influencers could be liable for misleading representations. In the Competition Act, a person charged with misleading representation can either be fined ten million shillings or five years imprisonment or both.[6]

Materiality in Enforcing Representations on Social Media

In addition to the determining whether the representation is misleading and the effect of the representation on an ordinary consumer, in James Kuria v Attorney General & 3 others eKLR, Mativo J, imposed a materiality standard. Materiality is defined as being of consequence or importance, or pertinent or essential to the matter. The effect of materiality is setting a different test for a misleading representation. The old test was an ordinary consumer. The new test that of an average consumer who is reasonably well informed and reasonably observant and circumspect.

In so doing, in the Always Kenya case, the influencers in #feelthecomfortalways advertisement are merely tagged. The average consumer who is well informed and reasonably observant will know the influencers are making representations on behalf of Always Kenya. Thus the influencers who are tagged would potentially not be liable for misleading statements.

Additionally, the Competition Authority[7] and Inspectors under the Department of Weights and Measures[8] mandated with receiving and investigating misleading representations will be forced to consider materiality.

Conclusion

We have a Court decision imposing the materiality and average consumer test and a standard in the Consumer Protection Act and the Competition Act on misleading representations. The result of this a possible duplicity of standards on misleading representations. Inevitably enforcement mechanisms will prove to be difficult task.  


[1] https://www.forbes.com/sites/theyec/2018/07/30/understanding-influencer-marketing-and-why-it-is-so-effective/#73f9195371a9 accessed on 6th February, 2019.

[2] Consumer Protection Guidelines, 2014.

[3] Consumer Protection Guidelines, 2014.

[4] Code of Advertising Practice and Direct Marketing, 2003.

[5] Section 55, The Competition Act, No 12 of 2010, see also Section 12, Consumer Protection Act No. 46 of 2012.

[6] Section 70, Competition Act, No 12 of 2010.

[7] The Competition Act, No 12 of 2010.

[8] Section 21, Trade Descriptions Act CAP 505.